24 November 2010: Children with learning disabilities more likely to go to prison

Children with learning disabilities and other impairments are more likely to go to prison than other young people because the youth justice system is failing to recognise their needs, according to a major surveyof youth offending team (YOT) staff.

23% of young offenders have very low IQs of less than 70, and 25% have special educational needs – a far higher proportion than in the general population.

Seen and Heard: supporting vulnerable children in the youth justice system, published today (Wednesday 24 November) by the Prison Reform Trust and the Association of Youth Offending Team Managers, says youth justice agencies are not fulfilling their legal duty to prevent discrimination. It argues more should be done to identify and help children with learning disabilities and other impairments as part of the coalition government’s plans to “radically” overhaul youth justice.

Failing to identify and make provision for children’s support needs was the most significant factor identified by YOT staff in determining the likelihood of custody. For children whose needs were not identified, how they looked and behaved in court would often determine whether or not they received a custodial sentence. Eighty per cent of magistrates said “the attitude and demeanour of a young person influences their sentencing decision to some or a great extent” in a 2004 Audit Commission survey.

The report expresses concern that children with learning disabilities and other impairments may not be receiving the right to a fair trial, enshrined in Article 6 of the European Convention on Human Rights, as a result of their difficulties in understanding the legal and judicial process.

Many of the 208 youth offending team staff who participated in the survey had positive things to say about work they were proud of and others recounted stories about individual children that they and other YOT staff had supported. The overall picture however was mixed and very worrying.

The report, which draws on the views of over half the YOTs in England and Wales, identified a lack of routine screening and assessment to identify children’s support needs. Information received from children’s services, such as special educational needs teams and child and adolescent mental health services, was limited. Although YOT staff spoke highly of specialist services and support, many reported gaps in provision. The survey found that:

· Only around half of YOT staff said they received any training to help identify when children might have particular impairments and difficulties.

· Most YOTs did not use screening or assessment tools or procedures to identify children with learning disabilities.

· Fewer than one in 10 staff said their YOT kept statistics on the number of children with disabilities serving court orders.

· More than one in five staff said their YOT did not have a mental health worker.

Writing in the Foreword to the report, Lord Bradley, who conducted a review for the government published in 2009 of people with mental health problems or learning disabilities in the criminal justice system, said:

To work effectively with this group of children – and influence them away from an adulthood of offending – we need to know who they are, what treatment and support they require, and be able to intervene swiftly and appropriately. With the coalition government’s plans to radically overhaul youth justice, there is an opportunity to build on what works and to replicate good practice as ‘standard practice’ across the entire youth justice system.

Juliet Lyon, Director of the Prison Reform Trust, said:

Vulnerable children in the youth justice system should be seen and heard. As this in depth report shows too many young people are in prison because their needs are not being recognised or met. There is nothing fair about a system where things are not explained or understood and where youngsters are not properly represented or protected.

Jenny Talbot, author of the report, said:

Children with learning disabilities, mental health problems and other impairments make up the majority of people in the youth justice system. Often they have passed through the education system with those needs unrecognised. We must ensure schools and other children’s services are properly equipped to identify and help these children - before they come into contact with the youth justice system.

Diz Minnitt, Speech and Language Lead at the Association of Youth Offending Team Managers, said:

The report illustrates a fundamental problem with the youth justice system. Courts are reliant on YOT staff to highlight a child’s learning or communication difficulties. If, as is highlighted, a sizeable percentage of staff do not have the appropriate skills or access to accurate screening and assessment tools, then the negative consequences are significant. A court faced with a sullen uncommunicative and defensive 17 year old tends to view the behaviour differently once aware that he has been assessed as having communication difficulties, cannot understand a lot of the language being used and is functioning at the level of a child 10 years younger.

The Prison Reform Trusts’ No One Knows programme, which the Fund supported, showed us that the needs of adult offenders with learning disabilities are rarely recognised or met and this new research reveals the sad truth that, despite many committed individuals in youth justice services, children and young people with impairments and difficulties often fare no better. This timely report shows that we must put systems in place that both identify and protect the needs of young people with impairments and difficulties and provide them with the necessary support to engage with rehabilitation programmes that will stop them offending.

3. The survey was undertaken between October and December 2009. To supplement responses to one of the areas covered by the survey, three focus groups were arranged that took place in July 2010. Focus groups involved 18 YOT staff from three different YOTs. Information about the research and the questionnaire were circulated to YOT managers by the Association of YOT managers and, separately, by the Prison Reform Trust. Responses were received from over half of YOTs in England and Wales; there were 208 responses from 89 YOTs. Two YOTs returned nine questionnaires each and nine participants didn’t identify which YOT they were from.

Of the responses:

· Five were from Wales and 203 from England

· Nine (4%) were from heads of service

· 41 (20%) were from YOT managers

· 60 (29%) were from YOT workers/caseworkers

· 98 (47%) were from specialist workers; of this group:

i. Around half were from health, including mental health workers, general health workers, learning disability nurses, clinical psychologists, occupational therapist, a general practitioner (GP), substance misuse workers, and from CAMHS

iv. Smaller numbers, between one and three in each case, were responsible for accommodation, performance and practice, anti-social behaviour, restorative justice, parent support, parenting programmes, offending behaviour programmes, mentoring, intensive support and supervision, and prevention work; or were social workers, youth workers, YOT court workers and connexions workers.

4. Part III of the Crime and Disorder Act 1998 sets the statutory framework for the youth justice system in England and Wales. The youth justice system relates to children between 10 years of age and under 18, and the principal aim is to prevent offending. Section 38 of the Act requires local authorities, acting in cooperation with partner agencies (these are the police, probation and health), to ensure that youth justice services, appropriate to their local area, are available. This obliges local authorities to assess what level of services is appropriate for their area and to take steps to secure provision (Office of Public Sector Information, 2010: annex C). Under the provisions of the Act, local authorities must establish, in cooperation with partner agencies, one or more youth offending teams (YOTs) for their areas.

5. Youth offending teams work with children when they first come into contact with youth justice services and, in particular, prepare pre-sentence reports for the courts, and provide supervision and support for children in receipt of court orders. YOT staff also work with children identified as being ‘at risk of offending’, to prevent first time offending and anti-social behaviour. Under the provisions of the Crime and Disorder Act Act, YOTs should include at least one of the following:

· an officer of a local probation board

· a social worker of a local authority social services department

· a police officer

· a person nominated by a primary care trust or a health authority, any part of whose area lies within the local authority’s area

· a person nominated by the chief education officer appointed by the local authority under section 532 of the Education Act 1996.

Each YOT has a manager who is responsible for coordinating the work of youth justice services locally. YOTs are mostly coterminous with local authority areas. In 2008/09 there were 157 YOTs; 139 of which were in England and 18 in Wales. The work of YOTs is overseen by the Youth Justice Board.

6. The Disability Discrimination Act (DDA) 1995 made it unlawful for public authorities to discriminate against people with disabilities. Amendments made by the DDA 2005 took this further by introducing the Disability Equality Duty (DED). The DED has the dual aim of eliminating discrimination and promoting equality, thus public authorities must work to ensure that discrimination does not occur by, for example, making adjustments to existing service provision and in ensuring that future provision is accessible to people with disabilities.

The DDA 1995 defines a disabled person as someone who has ‘a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities’ (section 1(1)). This definition would include certain mental health problems and is sufficiently broad to encompass learning, developmental or behavioural disorders such as autistic spectrum disorder, ADHD, communication difficulties and dyslexia.

The Equality Act 2010 replaced existing anti-discrimination laws with a single Act. The Act includes a new public sector Equality Duty, replacing the separate public sector equality duties relating to disability, race and gender equality. The Equality Duty comprises a general duty, set out in the Act itself, and specific duties imposed through regulations. Secondary legislation is required to fully implement the Equality Duty and in August 2010 the government Equalities Office launched a consultation on draft regulations for the specific duties, which ends on 12 November 2010. At the time of writing, the government is planning to bring the general and specific duties into force in April 2011(Government Equalities Office, 2010).

Profile of children who offend

All children in the youth justice system are vulnerable by virtue of their young age and developmental immaturity. Many are, in fact, doubly vulnerable: that is they are disadvantaged socially, educationally, and also because they experience a range of impairments and emotional difficulties. It is well established that high numbers of children who come to the attention of youth justice services have complex support needs, low levels of educational attainment, and far more unmet health needs than other children of their age.

Mental health problemsOn the basis of an international literature review Hagell (2002) concludes that rates of mental health problems are at least three times higher among children in the youth justice system than within the general population of children:

Rates of mental health problems in the general population of adolescents have been estimated at 13% for girls and 10% for boys (11–15 years). Research suggests that prevalence of mental health problems for children in contact with the criminal justice system range from 25 to 81%, being highest for those in custody. We concluded that a conservative estimate based on the figures in the literature would indicate the rates of mental health problems to be at least three times as high for those within the criminal justice system as within the general population. The most common disorders for both the normal population and the population of young offenders were conduct disorders, emotional disorders and attention disorders. Substance misuse is also a particular problem (Hagell, 2002).

More recently, the prevalence of emotional and mental health needs among children in the youth justice system was assessed in the course of joint Healthcare Commission and HM Inspectorate of Probation inspections of youth offending teams (YOTs). A 2006 Healthcare Commission report notes that the 2004/5 inspection of 29 YOTs found 44% of children to have emotional or mental health needs. A subsequent review of inspections found 43% of children on community orders to have emotional and mental health needs (2009).

Learning disabilities and learning difficultiesA review in 2002 by HM Inspectorate of Prisons and the Office for Standards in Education of almost 6,000 boys screened on admission to 11 custodial establishments found that:

4% had attainment at pre-entry level (i.e. lower than would be expected of a 7-year-old) in numeracy, and 4% had pre-entry level attainment in literacy38% had entry-level attainment (i.e. the level expected of a 7 year old) in numeracy, and 31% had entry-level attainment in literacy.

More recently, an assessment of children who offend in England and Wales by Harrington and Bailey (2005) found that 23% had an IQ of under 70 (‘extremely low’) and 36% had an IQ of 70-79.

In 2006 the Youth Justice Board (YJB) reported that:

25% of young offenders had special educational needs identified, 19% of whom had a Local Education Authority statement of special educational needs, and46% were rated as under-achieving at school (YJB, 2006).

Communication difficultiesA number of research studies have demonstrated high numbers of children in the youth justice system with communication difficulties (RCSLT, 2010). One recent study showed that over 60% of children in the criminal justice system have a communication disability and, of this group, around half have poor or very poor communication skills (Bryan, Freer and Furlong, 2007).

In his review of services for children with speech, language and communication needs, John Bercow notes the high prevalence of these problems among children who offend and argues for better responses to such needs across the youth justice system (Bercow, 2008).

Children in careIt has long been recognised that children who are or have been in care are over-represented among the offender population. Research commissioned by the Youth Justice Board found that 41% of children on custodial sentences had been ‘held in care’, while 17% were on the child protection register (Hazel et al, 2002). A more recent review found that 22% of children aged under 14 years had been living in care at the time of their arrest and a further 6% were on the child protection register (Glover and Hibbert, 2009).

Experiences of abuse

Needs relating to, or following from, experiences of abuse are also common among children in the youth justice system; research shows that two in five girls in custody and a quarter of boys reported suffering violence at home; one in three girls and one in 20 boys in prison report sexual abuse, and half the girls in prison have been paid for sex (Prison Reform Trust, June 2009).